Bowers v. Hardwick (1986)
Relying on "substantive due process" precedents—including the U.S. Supreme Court's earlier decisions in such cases as Roe v. Wade (1973) and Stanley v. Georgia (1969)—Michael Hardwick brought an action that challenged the application of Georgia's criminal sodomy law to acts of homosexual intimacy between consenting adults that occur within the home. In a five-to-four decision, the U.S. Supreme Court rejected Hardwick's argument, reasoning that the court "comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution." The court acknowledged that "the cases are legion" in which the Court had construed the "due process" clauses of the Fifth and Fourteenth Amendments to protect important substantive personal interests. The court, however, found that none of those cases mandated invalidation of Georgia's ban on consensual sodomy. The court distinguished the abortion cases Roe, for example, as involving the distinctively profound and life-altering choice of whether "to beget or bear a child" and reasoned that Stanley —which had protected the right to possess obscene materials in the home—was "firmly grounded in the First Amendment."
The court's decision in Bowers, however, hardly ended debate about the proper scope of constitutional liberty possessed by homosexuals and other American citizens under the Fourteenth Amendment. Justice Lewis Powell, who had provided the critical fifth vote in Hardwick, said of the case after his retirement from the bench, "I think I probably made a mistake in that one." And in 2003 a new five-justice majority overruled the Bowers decision in Lawrence v. Texas. Writing for the majority, Justice Anthony Kennedy reasoned that a generalized banon consensual adult sodomy "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Writing in dissent, Justice Antonin Scalia responded that "the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed."